Water case stirs local waves

LAS CRUCES — A landmark water decision making waves across the state won't leave Doña Ana County untouched.

But its exact impact on farmers and other water-rights holders may hinge upon further court and administrative decisions that haven't yet been made.

At issue is a state Supreme Court decision around the start of the month essentially granting an OK for the New Mexico state engineer to move forward with regulations to enforce water rights — even in basins where water rights haven't fully been defined by the courts, including Doña Ana County. Those rules also would spell out how the state engineer could cut off — in drought years — the water users with the least seniority legally, officials said. That would happen through what's known as a "priority call."

New Mexico State Engineer Scott Verhines noted that, before the lengthy adjudication of a water basin is finished, water users are in "limbo" about the nature of their rights. And the Supreme Court's recent decision gives his office authority — which previously had been in question — to protect senior users and settle disputes, which ramp up in times of scarcity.

"It gives us some mechanisms to keep everybody talking to each other and hopefully out of court," he said.

The Supreme Court reversed two rulings from lower courts that had declared unconstitutional all or part of a set of state-engineer regulations, called Active Water Resource Management.

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The rules were initially challenged in court by Tri-State Electric and the New Mexico Mining Association.

More impact

For Doña Ana County, which makes up most of the Lower Rio Grande Basin, former State Engineer John D'Antonio began crafting a set of draft AWRM rules about eight years ago. Groundwater users were required to install meters as part of the plan. The rules were shelved, however, as the Tri-State lawsuit progressed.

Steve Hernandez, Las Cruces attorney for the Elephant Butte Irrigation District, noted that the recent ruling dealt with an overarching question related to the state engineer's authority. But there's still room to challenge the basin-specific rules, once they're eventually final, he said.

"We're waiting to see what he's going to do," said Hernandez, of the state engineer.

Notable, Hernandez said, is that several emergencies facing the State Engineer's Office when the first set of AWRM rules was drafted have since been resolved. One was the threat of litigation from the state of Texas, which has a stake in Rio Grande water. That pressure was alleviated in 2008, when EBID and the El Paso irrigation district reached a settlement about water and established a new joint operating agreement, Hernandez said.

Through that agreement, Hernandez said, EBID assumed responsibility for getting El Paso irrigators their share of river water. Previously, it was up to the state of New Mexico to do so.

But Hernandez pointed out that the operating agreement has been challenged in federal court by New Mexico Attorney General Gary King. If that court rules against the agreement, then the responsibility for delivering Texas' water, again, will fall to the State Engineer's Office. And, because of the Tri-State decision, the state engineer could resort to using priority calls on wells in the Lower Rio Grande Basin — the main tool at his disposal.

In the event of a priority call, an aspect of groundwater rights known as the priority date — older rights are considered more senior — have less risk of being shut off.

In light of the recent court decision, Hernandez advised owners of "supplemental" wells, those drilled to supplement river water, to check the hydrographic survey on file with the state engineer to make sure the recorded well date is accurate.

Also, Hernandez advised following the federal litigation in order to track the larger picture.

"They need to watch to make sure what happens with the attorney general's lawsuit," he said.

What's next?

Verhines said his office has been accused of a "power grab" for pursuing Active Water Resource Management. But he said that's not what's intended.

"We're looking at this as a way to work though some really difficult times," he said.

When might the proposed rules for the Lower Rio Grande Basin be revived?

State officials didn't have a firm date.

DL Sanders, attorney for the State Engineer's Office, said the state's next task is to "dust off" the draft provisions, "re-assess our priorities and look at where and when we all begin to implement this."

Said Verhines: "We're going to pull those back up, make sure they all make sense and where and when do we all begin to implement this?"

Diana Alba Soular can be reached at (575) 541-5443; follow her on Twitter @AlbaSoular